Thoughts on Life, Love, Politics, Hypocrisy and Coming Out in Mid-Life

Tuesday, February 21, 2017

Second Amendment Doesn’t Protect Right to Assault Weapons

While the husband and I are planning to get hand guns and concealed carry permits in light of the growing anti-LGBT agenda flowing from Der Trumpenführer's regime, we are strong gun control supporters, especially when it comes to assault weapons, the weapon of choice of terrorists and other mass murderers. Thus, I was thrilled to see that the United States Court of Appeals for the Fourth Circuit ruled en banc to uphold a Maryland ban on the sale of assault rifles. The full opinion can be viewed here. The Court's common sense ruling hinged on several concepts: (i) that military weapons need not be in the hands of individual civilians, (ii) communities and states should have the right to regulate weapons that pose a dangerous threat of mass death, and (iii) gun manufacturers should not be able to use the courts to circumvent legislatures. Slate has details on the ruling. Here are highlights:

On Tuesday, the U.S. Court of Appeals for the 4thCircuit ruled that the Second
Amendment doesn’t protect assault weapons—an extraordinary decisionkeenly
attuned to the brutal havoc these firearms can wreak. Issued by the court
sitting en banc, Tuesday’s decision reversed a previous ruling in which a panel
of judges had struck down Maryland’s ban on assault weapons and detachable
large capacity magazines. Today’s ruling is a remarkable victory for gun safety
advocates and a serious setback for gun proponents who believe the Second
Amendment exempts weapons of war from regulation.

In
2013, Maryland passed a law barring the sale, possession, transfer, or purchase
of what it dubbed “assault weapons,” including AR-15s, AK-47s, and
semiautomatic rifles. It also banned copies of these firearms and large
capacity magazines. Gun advocates sued, alleging that the law violated their
right to keep and bear arms under the Second Amendment. A district court
rejected their claims, but a panel of judges from the 4thCircuit reversed that rejection,
holding that the Maryland law infringed on gun owners’ Second Amendment
rights—and that gun regulations must be subject to the extremely demanding
“strict scrutiny” standard. The full court voted to vacate that decision and
rehear the case, and Tuesday’s decision marks a vigorous rejection of that
extreme stance.

The
majority opinion opens with a disturbing account of several recent mass
shootings enabled by the kind of assault weapons that Maryland seeks to ban. In
Newtown, Aurora, San Bernardino, Orlando, Binghamton, Tucson, Virginia Tech,
and Fort Hood, mass shooters used either military-style rifles or high-capacity
magazines, significantly increasing the ultimate death tolls. Newtown, in
particular, compelled Maryland to ban these weapons. The state recognized that
the Supreme Court’s decision inD.C. v.
Hellerprotects
citizens’ right to keep handguns in the home. But it argued that the firearms
it had proscribed constituted “dangerous and unusual weapons,” which theHellercourt said could be outlawed.

A
majority of the 4thCircuit
agreed with Maryland, holding that the weapons it forbade were sufficiently
similar to M-16 rifles to fall outside the ambit of the Second Amendment.

“Whatever
their other potential,” the court wrote, these weapons “are unquestionably most
useful in military service. That is, the banned assault weapons are designed to
kill or disable the enemy on the battlefield.”

“The
next effect of these military combat features,” the majority concluded, “is a
capability for lethality—more wounds, more serious, in more victims—far beyond
that of other firearms in general, including other semiautomatic guns.” . . . .
It is a weapon of war, not the
tool of self-defense envisioned by theHellercourt.

Although
the majority held that these weapons fell outside the scope of the Second
Amendment altogether, it also noted, as an “alternative basis,” that evenifthe amendment applied, the
Maryland law would still be constitutional. Since the law does not “effectively
disarm individuals or substantially affect their ability to defend themselves,”
it would only be subject to intermediate scrutiny if the Second Amendment
applied. And the law meets that level of scrutiny because it is “reasonably
adapted to a substantial governmental interest.”

The
most striking part of Tuesday’s decision is a concurrence written by Judge J.
Harvie Wilkinson III, a Reagan appointee. Wilkinson joined the majority
opinion, but he wrote separately to express his discomfort with the gun lobby’s
strategy of using the courts to increase access to dangerous firearms:

As Heller recognized,
there is a balance to be struck here. While courts exist to protect individual
rights, we are not the instruments of anyone’s political agenda, we are not
empowered to court mass consequences we cannot predict, and we are not
impaneled to add indefinitely to the growing list of subjects on which the
states of our Union and the citizens of our country no longer have any
meaningful say.

Wilkinson
also criticized the dissenting judges, as well as the plaintiffs in this case,
for attempting to take gun regulation out of democratic sphere almost entirely.

His
panegyric to judicial restraint with regard to Second Amendment interpretation
is quite moving:

Disenfranchising
the American people on this life and death subject would be the gravest and
most serious of steps. It is their community, not ours. It is their safety, not
ours. It is their lives, not ours. To say in the wake of so many mass shootings
in so many localities across this country that the people themselves are now to
be rendered newly powerless, that all they can do is stand by and watch as
federal courts design their destiny—this would deliver a body blow to democracy
as we have known it since the very founding of this nation.

In
urging us to strike this legislation, appellants would impair the ability of
government to act prophylactically. More and more under appellants’ view,
preventive statutory action is to be judicially forbidden and we must bide our
time until another tragedy is inflicted or irretrievable human damage has once
more been done.

I may be dating myself, but Wilkinson was a young professor at the University of Virginia School of Law when I was a law student.

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Out gay attorney in a committed relationship; formerly married and father of three wonderful children; sometime activist and political/news junkie; survived coming out in mid-life and hope to share my experiences and reflections with others.
In the career/professional realm, I am affiliated with Caplan & Associates PC where I practice in the areas of real estate, estate planning (Wills, Trusts, Advanced Medical Directives, Financial Powers of Attorney, Durable Medical Powers of Attorney); business law and commercial transactions; formation of corporations and limited liability companies and legal services to the gay, lesbian and transgender community, including birth certificate amendment.

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